IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37579 of 2007(W)
1. M.P.SURENDRAN, S/O.PRABHAKARAN,
... Petitioner
2. J.SASIDHAR, S/O.JANARDHANAN,
3. B.S.PRASAD, S/O.B.G.BALAKRISHNAN,
4. M.M.ASOKAN, S/O.RAGHAVAN,
5. V.SANTHOSHKUMAR, S/O.P.VASU,
6. G.SANTHOSHKUMAR, S/O.GOPY,
7. K.P.DINESHAN, S/O.NARAYANAN,
8. K.M.SANTHOSH, S/O.PADMANABHAN,
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE DIRECTOR OF COLLEGIATE EDUCATION,
3. THE MANAGER, SREE NARAYANA COLLEGE,
4. THE PRINCIPAL,
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.A.N.RAJAN BABU, SC, S.N.TRUST
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :23/10/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.37579/2007-W
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Dated this the 23rd day of October, 2009
J U D G M E N T
The petitioners are working as Peons under the third respondent
Management, having been appointed pursuant to Ext.P1 notification. In
view of the ban orders, petitioners were appointed on contract basis which
continued from time to time. The prayer in the writ petition is to quash
Ext.P7 by which the Government accorded sanction to approve the
appointment of 137 persons as Last Grade Servants in the S.N.Trust College
during 1998-99 from the date of that order without retrospective effect as a
special case. Further the main prayer in the writ petition is to approve the
appointments of the petitioners from the date of their original appointment
and release the entire arrears of salary and other allowances to them for the
period they have actually worked.
2. Heard the learned counsel for the petitioners and the learned
Government Pleader.
3. The learned counsel for the petitioners, relying upon the
common judgment in W.P.(C).No.27524/2007 and connected cases prayed
that a similar direction may be issued in this case also as the petitioners are
W.P.(C). No.37579/2007
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similarly placed. Therein, a similar issue was considered and in paragraph
(10) of the judgment, this Court relied upon the judgment in
O.P.No.21268/2002 wherein it was held as follows:-
“13. It is trite law that no executive order or circular
issued by the Government can override the statutory
provisions. As per the provisions of the MG University Act
and the Statutes made thereunder, the private college
managements are competent to appoint teachers having the
prescribed qualifications in the vacancies of teaching posts
permissible in accordance with the workload prescribed by the
ordinance. The appointments so made are liable to be
approved by the University in accordance with law. {See the
decision of this Court in Cherian Mathew v.Principal S.B.
College, Changanacherry [1998 (2) KLT 144]}. The power
of the University in this regard is a power coupled with a duty
to act when circumstances warranting exercise of that power
are shown to exist and a person interested makes an application
for exercising it. After the statutory ban created under Section
5 of Ext.P3 Act is over, there is no ban in the eye of law against
making fresh appointments to teaching posts or against
approving them. Any executive order or circular issued by the
Government banning appointments or their approval are
invalid. It is declared so. Therefore, this Original Petition is
disposed of with the following directions:
W.P.(C). No.37579/2007
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14. The University shall fix the strength of teaching
staff in the colleges of the petitioners from the academic year
2000-2001 onwards. Of course, this can be done taking into
account the revised work load of teachers of 16 periods a week.
If the appointments are made by the managements in the posts
permissible in accordance with the staff strength so fixed, the
approval of appointments of the incumbents shall be
considered by the University in accordance with law. If the
appointments are in accordance with the provisions of the
Statutes and Ordinance, they shall be approved ignoring the
orders or Circulars issued by the Government banning
appointments and their approval. The University shall
complete the exercise within four months from the date of
receipt of a copy of this judgment. In the case of the
appointments duly approved by the University, the concerned
Deputy Director shall release the salary due to the incumbents
in accordance with law without any further delay.”
and observed that “since the Managements are entitled to make
appointments in terms of the staff pattern approved by the respondents, the
executive orders banning appointments to such posts can have no force.”
Accordingly, it was held that the directions issued in O.P.No.21268/2002
will govern that case also.
W.P.(C). No.37579/2007
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4. Since the petitioners herein are also similarly appointed, the
above directions will apply to them also.
5. In that view of the matter, Exts.P6 and P8 are set aside. There
will be a direction to the respondent to consider whether the appointments
in question were made to posts available in terms of the approved staff
pattern, and on such examination if the finding is that the posts were
available, the Government cannot avoid its responsibility to pay salary to
the appointees. Therefore, the relevant aspects shall be examined and
appropriate orders shall be passed within three months from the date of
production of a copy of this judgment.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
ms